The actions of maintainers, managers, suppliers and the like are irrelevant in the context of what we are discussing in this thread.

What we are discussing is the attempted use of CVR/DFDR data by prosecutors/lawyers looking for some retribution be it kudos or financial after an aircraft incident/accident That has absolutely nothing to do with competent incident/accident investigation by the properly constituted (Annex 13) entity.

It would not be a surprise if at some time in the future those countries that criminalise incident/accident investigations find themselves on a list not dissimilar to the one of third world state registered operators that are currently unwelcome in Europe.

Any judicial impediment to open and frank safety reporting by crew members is unquestionably a serious disincentive to report.

Tipsy

Harry


IIRC in the Nimrod case even the boys in blue were involved. They told RAF families a prosecution wouldn't succeed as no witnesses had come forward. They were sitting on witness statements.

I was told never to trust the Police in any accident/incident

Like everyone else they have their own agendas and they are quite capabale of hanging you out to dry if it suits them and their media friends

Criminal Justice vs Natural Law vs Safety
 

I don't think I'm being controversial if I say that we are all disappointed when we hear that there has been accident where people have been killed or injured. Unfortunately, the natural reaction of the public is as follows:

• Something went wrong
• Someone must be at fault
• Someone must now be punished
• That will stop it happening again
• Only then will be safe.

It is a simple creed and meets people's basic need to get rid of nasty things. The public doesn't like open ends, threats, possible unpleasant outcomes. Furthermore, they are totally satisfied that simply punishing someone will prevent reoccurrence.

Unfortunately, lawyers and the justice system like this approach as well. If someone (anyone) can be held responsible for an event, the "system" can say it has worked. So who and what gets the blame? The easiest path to take is blame the person controlling the thing that caused the damage. If you can't get to the person, get to the thing and if you can't get that, get to those who made the "thing". As far as they are concerned this process is elegantly simple.

But this short sighted, naive approach adds nothing to safety. Accidents are little more than unintended and unexpected outcomes. They are typically the culmination of a long string of factors and events initiated maybe many years before hand. Examples of this are the working practices responsible for the Clapham Junction rail crash, signal design and route training giving rise to the Ladbroke Grove accident, the door design, ship and operating practices on the Spirit of Free Enterprise. No one person, thing or practice caused any of these events. Each was the result of many factors. Therefore holding just one person or thing responsible can not be the right thing to do. But this is inelegant for the legal profession and has too many open ends for the public. The police and public prosecutors don't like it either. They appear to live in a binary world. So if they can prove the most minor of transgressions within a complicated chain of events, they can and will prosecute. Couple that with a good prosecutor and a weak defence and you are now 100% guilty.

Natural justice requires the following:

• An independent judge
• Assessment by your peers
• A right to see and question the evidence against you
• The right of appeal

On the face of it you may say the above replicates the legal criminal system. Well to a point it does. But one of the problems is the selection of your peers. It should be nurses who assess nurses, doctors who assess doctors and train drivers who... Only these people have an insight into the nitty, gritty details of the job. No matter how intelligent, quick witted or open minded members of the public are, they will never fully understand the tasks of a mariner, coach driver or doctor.

Another is the presentation of the evidence. Because the current jury system uses members of the public, the evidence presented has to be pre-digested for them. It's then spoon fed. And this is where the "experts" come in. They will not be independent. They are are there to help one side of the action prove its point. They are not there to be objective and certainly not present to prevent reoccurrence.

In this case I believe releasing CVR data will be a mistake because it will not be assessed by people who understand what is in (or not in) the data. We can see examples of this when data is released to the media. So called experts (like that clown from Janes) tell us what happened from a position of total ignorance. They are unable to set the evidence they have against any context because of their lack of real knowledge of the subject and incomplete information. Unfortunately though, the messages behind their opinions are generally so simple they satisfy the public's need for a simple closure. Releasing FDR data as well might reduce the magnitude of the mistake but only because it allows the defence to make a better case.

A safer world is a reasonable goal. This can only come about by a mixture of safer equipment, practices, training and environment. All of this has to be built on the foundation of what currently exists - an extant, imperfect world. At the same time, we also have to accept that 100% safety is totally un-achievable. And this might not be acceptable to the public, even though this is a fact of life. As I said before, the public want certainty and find "maybe's" and "possibly's" hard to live with.

Justice? Well it's legal but it won't add to our safety. Also, our so called justice systems don't require us to contribute to our prosecution. Furthermore, because our actions are not assessed by our peers only a fool would willingly contribute information that may be used against themselves. Yet to make our world a safer place we have to have knowledge and experience of past events. Close this source of information and our future would will be built upon a blinkered vision of the past. It is also a great shame that our compensation system is based on blame determined by the justice system.

Not once have I said that that pilots must not be prosecuted. That is because I believe that nobody should have their professional conduct discussed in a court of law. This is because they are not capable of doing the job properly. Criminal prosecutions compromise our future safety. Only when professional conduct is properly assessed outside the current legal system will we be able to make some real, worthwhile improvements in safety. And we can fix the wretched compo system while we are at it.

PM

The data is to released to the Civil Aviation Authority for their assessment.

Exactly. They are not independent.

PM

No not "Exactly". You first argued the data shouldn't be assessed by non-experts. Now you have changed your tune to say the experts aren't independent.:ooh:

So do I take it you don't think the CAA, operators and AAIB do a good job at this? Or do you have another proposal?

Tipsy says

quote

"What we are discussing is the attempted use of CVR/DFDR data by prosecutors/lawyers looking for some retribution be it kudos or financial after an aircraft incident/accident That has absolutely nothing to do with competent incident/accident investigation by the properly constituted (Annex 13) entity."

It is all to be found in the AAIB publication Aircraft Accidents and Serious Incidents Guidance for Airline Operators, those interested may read it at :

https://www.gov.uk/government/upload..._Operators.pdf

I would in particular draw attention to para 25, "Police and Judicial Investigation ".

AAIB on Police Investigations
 

Thank you Chronus for the link to AAIB's "Aircraft Accidents and Serious Incidents Guidance for Airline Operators" and pointing out para 25, "Police and Judicial Investigation", page 18. I appreciate it when posters go to the trouble of providing facts from an authoritative source.

Quite apart from the outcome of the forthcoming AAIB report in this case the ruling raises several questions which we as pilots need to understand and answer.

Firstly will this ruling affect the independent investigation of this accident by the AAIB?

Answer No. They already have all the evidence and data they need.

Next has the LAW been broken?

No. All parties have followed the law. The relevant eu legislation allows for the police to gain access to the data if a court rules it. The police applied for access, then the AAIB said no unless you go to court the police did so.

Thats the easy bit,

Next shoild we deny a criminal investigation team access to relevant data? If there is ctv footage of a murder would you deny the police the right to view it?

The answer should be easy however in the case of CVR evidence we need to see how that evidence came into being. Right from the start we as pilots agreed to allow cvr in order to promote flight safety. Not for the purposes of prosecution.
That has been enshrined in law, but crucially allows in exceptional circumstances the use under court agreement, by thd police etc.
No one on this forum has said pilots should be imune from prosecution and there hss been ( as far as I am aware ) an agreement that the AAIB should ge allowed to get on with it's job unhindered by the police. Once the investigation is complete the police can see quite clearly if prosecution is not only appropriate, but in the public interest. (Or not).

In this case the police /lord advocate apear to have jumped the gun, the reasons for their application are not unique and their case could await the report without any harm being done.

At the extreme end we can see the effect of inappropriate police action, in Italy. Namely the ATR crash where the police seized all the evidence and only reluctantly released it under a court order. The transcript of the cvr was released to the press with lots of adverse comments the night before the cvr was returned to the investigators, their report states they were unable to comply with EU law and annex 13 because of the actions of the Italian police!

Lastly will this case decrease flight safety?
In other words will pilots and others be less forthright and open as a result?
Will there be more cases of the erase button being pressed?

The answers to PT6 Drivers, post no 91 are found at the testimony given by Captain Duane Woerth before the sub committee on aviation on transportation and infrastructure US House of Representatives on issues arising on the crash of Egypt Air 990.
Those interested may find it at the following link.

Testimony: 4/11/00, ISSUES ARISING OUT OF THE CRASH OF EGYPT AIR 990

I subscribe to Captain Woerth`s opinion wholeheartedly.

I don't think too many pilots will commit this intentional act. Of course nor do they have to. It is far easier and 'passive' to simply leave the batteries on for 30 minutes after landing thereby (in most cases) overwriting all except the area mic's.

In this scenario the AAIB would still get data from accidents, but may lose the useful lower level stuff (serious incident/incidents) that happen daily that can help to identify safety trends and hazards. That's where the big loss to flight safety may occur.

And here in this very thread we have the rumblings of the death of safety when outsiders move in and examine data for legal means in few cases. While on the other hand we have a promotion of actions from within the industry ready to decrease safety by globally wide actions against the use of these recorders.

In the end, should the investigation discover evidence that these recorders have been purposedly defeated you can bet that it will be front page news in the public press.

Is this really the way you want it to look?

Please do not misrepresent the intent of my previous comment. As a Safety Manager for the last few years trying to instill a Just Culture in a company that had more than its fair share of cynics I am a passionate advocate of a reporting system that has the confidentiality and integrity necessary to convince them of its benefits. A Just Culture takes years to construct and seconds to destroy.

I was not suggesting, recommending or extolling a promotion of actions in any way. I did state that I did not believe that pilots would intentionally erase CVRs. I was simply providing my observations from my experience in safety as to how easy it will now be for the safety skeptics to convince themselves that they were right all along. My point was that because of the SOPS and regulations currently in place governing CVRs it won't even require a conscious action on their part to undermine it. That's why this judgment is worrying to me as a Safety Manager.

I believe that the judgment was wrong, but only insofar as the timing was premature. The Judge could have reserved judgment until after the AAIB Report was published. The safety investigation could be completed without interference and the prosecutor would then have an expert opinion on the cause of the crash to inform his decision on criminal activity. He was over-zealous in the timing of the application for access.

So you advocate using an AAIB report as evidence in court?

Is this the new Catch 22?

Never Fretter,
I also advocated waiting, and my reasons are that the report in most cases will show whether or not inappropriate procedures or actions have been taken.

At that point it is up to the police or apropiate body to conduct their own investigation and decide if a prosecution is appropriate. The focus of their inquiries will inveitably come from the AAIB report, but with the crucial difference that the AAIB report is focused on safety.
The report is publicly available and will thus be available to law enforcement agencies by default. It would be highly inappropriate to resrict access to that report.
The evidence in court would come from their investigation.
However AAIB officials have appeared in court and presented evidence based on their investigation. These were inquests, however I am not sure if they have appeared in prosecution cases.
If the law enforcement agencies wished access to CVR data they would have to show a compelling reason so to do.

In this case they have not shown any compelling reason, nor have they shown why it is so urgent that they have the data now as opposed to waiting a few months.

More muddled thinking:

Again advocating using a safety report not intended to identify blame or liability to make a decision on blame and liability.:ugh:

@Piltdown Man:

I've been involved in a trial involving fraud where I was asked to perform forensic analysis of event log on a bank's core systems.

I was given no guidance whatever in terms of being asked to aid the prosecution; I was merely asked to examine the system event and transaction logs and to produce a sequence of events over a chronological period. This wasn't as simple as it may sound; on mainframes a lot of event activity is in non-human language form fr reasons of terseness and performance.

I was also advised that I would need to be aware of the regulatory requirements along with the company's internal standards. Any breaches should be highlighted.

Finally, I had to minutely document my methodology. Explicit in all of this was that I was to avoid interpretation. My job was to translate those bits into a chronology of events. The defence was given the opportunity to challenge the methodology at the outset of the process. Their expert suggested that the analysis should also include analysis of the operations of a random selection of other uses in the team concerned (cha-ching! Than you very happy!) in order to establish whether the company may have created an environment where they were allowing breaches as a matter of routine. Good call. The prosecutors were happy to go along with that.

The defence also made clear that they would - in the absence of having access to the logs - be performing their own forensics on the results of my analysis. I'd expect nothing less.

In the event, my appearance as a witness was brief. Their expert had raised just a couple of questions which were easily dealt with. He admitted to me some years later that he was obliged to justify his fees by giving them something - anything.

The point of this screed is that while the work of an expert witness as expressed in court may sound reductionist a huge amount of effort goes into making sure that it will withstand rigorous examination by the defence. The other point is that prosecutors don't rely purely on internal resources. They outsource when it is a matter in which they don't have the requisite skills.

They won't be using the Daily Mail's aviation "expert" to analyse the CVR. They won't be going to Jane's. They won't even ask an experienced pilot.

You can take it for granted that they will get in someone who has experience in accident investigations. You can take that for granted because in any putative future case that expert witness's credentials will be the first line of attack by any defence.

The only questions directed at me related to what training I had done in the area (plenty); how many years had I worked in that area (the answer rhymed with plenty); what was my level of experience with the diagnostic tools I'd used (lots: the training certificates were in the Book of Evidence along with my accreditations as a trainer in them).

True, the evidence I presented was anodyne and simplistic for the jury, but they were guided (at the direction of the judge) that since the content of it had been unchallenged by the defence they were to take it as fact. The regrettable questions regarding my expertise asked by the defence had been sufficiently dealt with and my evidence as to be taken on face value.

You can bet that by the nature of things any future case involving the CVR in this incident will be defended by defendants with great contacts in the aviation world - possibly better than those of the prosecution. That's how it should be.

Never Fretter

So do you propose that the police should not be allowed to read a freely available AAIB report?

:rolleyes:

Firstly there is a difference reading something and using it as evidence.

Secondly do you not realise there is a big danger that the safety value of an ICAO Annex 13 report will be undermined if an individual's future (and dare I say liberty) depend on what is concluded in an AAIB report?

Thirdly is it really fair to advocate that pilots have to endure the possibility of legal action hanging over them until after an AAIB report is published and PC Plod and the CPS get to read it?

And linked to the last point, as an AAIB report can't be used in evidence, even if the AAIB say the crew did a good job, that can't be used in the crews defence...

Hmmmm, that's not the way I read it. My interpretation was that the safety report should be used as the basis to perform an INDEPENDENT investigation that produced INDEPENDENT evidence. And it was that evidence that would be used in the court proceedings, and not the report itself.

Never

If you had read my posts on this you might understand my position on this.

Firstly my personal opinion is that this judgement is incorect. Primarily because although all the legislation that protects CVR data (for the reasons you state) allows under court orders for that data to be handed over, it should be in exceptional circumstances.
In this case as BALPA point out in their court statement, the Lord advocate has not given any exceptional reason, nor has he stated on what precise basis he neeeds it. This is a fishing expedition.
His sole reason seams to be that the police can compare witness statements against cvr evidence. This could apply in any accident or incident.
This is why I belive this will set a precident.
Secondly a just culture was never intended to protect those that deliberately commit act of gross negligence, read the jugement and you will see this point raised several times.
Thirdly if criminal acts have beeen committed the police or regulating authorities have a duty to investigate.

Fourthly I have never stated that the AAIB report should be used as evidence.

So if there is clear independent evidence of criminal activity then the authorities should pursue that, however if the police are intent on a fishing expedition with no evidence then that expedition should be denied them as long as possible.
As to should the pilots have to endure a long wait till the report is published, unfortunately yes.
The criminalisation of accidents is a bad move. It is very rare that someone goes out of their way to deliberately cause an accident or behave in a grossly negligent maner.

In summary this judgment whilst not giving the green light to whole scale criminalisation of accidents is I belive the start of that process.

Ken V

Exactly

In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police.

The principles for liaison between the CPS and the AIB are set out in a Memorandum of Understanding dated October 2008, between these two parties.

Here is a link to the full document:

https://www.cps.gov.uk/legal/assets/...2030.10.08.pdf

I would suggest that the section setting out the Basic Principles of
Co- operation are worthy of note.

Reference to this document may assist the forum in discussing and debating the issue. You may in particular note that the superior interest remains public safety, this takes precedence over criminal investigation. However the AIB may consider a criminal prosecution agency as an interested party and avail a report of its findings to such an agency.

A revised MoU is expected to be published in the near future. Perhaps it will deal more specifically with the thorny issue of CVR evidence.

As this tragic accident occurred in Scotland, it will not be the CPS who decide whether to prosecute. The Crown Office and McNacker will run the show. Although historically the CAA have brought prosecutions for breaches of the ANO etc.

I had to attend, as a witness, a fatal accident inquiry in Dumfries in 1993 (AAIB REPORT had been published) as a result of one of our BAeFC Gulf Air solo student crashing near Sanquhar.
Transcripts derived from ATC tapes were produced as part of establishing the facts ~ time lines.
So FDR/CVR evidence ~ this will be produced at the fatal accident inquiry post any other proceeding.

PT6Driver; I feel your pain! I don't understand why some insist in totally changing the meaning of a post by selecting one part in isolation.

Never Fretter;
I said
and then you translated that into;
The answer to this was in the very next sentence in the same post;
To avoid further confusion, I suggested that the judge could have adjourned the case and the safety investigation can continue without being prejudiced. The prosecutor can 'form an opinion' from the report (this is a legal term and is NOT the same as making a judgement). All this happens BEFORE any court case. He has to consider whether the case has a realistic chance of succeeding in front of a judge. For example (hypothetically) if the safety investigation discovered a fatigue failure of a vital component which rendered the heli unflyable then a finding such as this would provide the prosecutor with information that would allow him to form an opinion without ever accessing the CVR. KenV and PT6Driver both nailed it regarding the legal case. The prosecution must build their own separate case and cannot use the safety investigation in court.

Hopefully that has cleared it up for you.

Per Piltdown Man:

Er, care to comment FL?:ok:

Pilots union Balpa challenges Sumburgh crash black box ruling - BBC News :ok:

The BALPA decision to appeal the Court of Sessions ruling is welcome regardless of its outcome as we need a second test to ensure all the arguments have been given proper weight. As Flying Lawyer pointed out, this is actually an important case that could affect professional pilots here and in other countries.

Against a background of our trying to apply just culture from inside the blame society we now live in, it is worth remembering that people have died and it is therefore the duty of the Crown Office to determine whether those deaths were unlawful. If the accident had not caused fatalities it is doubtful the Lord Advocate would have asked for the CVFDR as such a request would not have passed the public interest test in the first place.

Fishing expedition or not, there is also the concept of best evidence in play. It would be unreasonable to base a decision to prosecute purely on incomplete (ie redacted) evidence - and it should certainly be grounds for an appeal if you were convicted on the same basis. And here the best evidence is the CVFDR. What may have blurred the lines on this occasion was an operator decision to release FDM data to Police Scotland shortly after the accident, in AAIB's view a move that was contrary to EU law. I am not sure who interpreted the FDM for PS, but I think most people would agree this was a very unwelcome use of the data.

I think all this will hinge on a higher court's view of the public interest test and it is perhaps useful that the decision on this occasion will involve more than one judge, as others may have different views. If the original order stands (and I hope it does not) then maybe the saving grace lies in the conditions Lord Jones attached to release of the CVFDR, which should at least ensure the CVR is not played in open court.

There is plenty more to come on this, including a potential appeal to the European court if this one fails.

People are routinely monitored, officially and unofficially by all sorts of recording devices, CCTV, phone records, CVFDRs, car trackers fitted by insurance companies to reduce premiums, in car video recorders, etc., etc.

It has long been a principle of British law that all evidence must be presented before a Court whether or not it might be predjudicial or beneficial to a defendant. It is for the judge presiding to rule whether evidence is admissible in considering a verdict.

The fact that evidence of any sort was recorded for purposes other than for consideration of a legal case is irrelevant. If evidence exists in any form, it should be submitted before a Court if that is what is required to reach a fair and considered verdict.

If you were the victim of some crime, you would be very upset if clear CCTV footage of the offence taking place was disallowed because it was recorded through the front window of private premises, or it was recorded by a traffic camera and therefore not for the purpose that the system was intended.

FDCVR's are intended to identify the causes of aircraft accidents. That should not preclude their use where appropriate to accurately establish the facts and where blame might lie after the safety investigations are concluded.

People in all walks of life and careers are routinely monitored and disciplined if wrongdoing is discovered. Pilots have no right to expect to be exceptions to the rule.

Chronus said :"In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police."

Unfortunately no. The UK has three legal systems: one covering England and Wales - and that's where the CPS role would be relevant, one covering Scotland (which applies to THIS case) and also one covering Northern Ireland.

After nearly 50 years employed in rotorwing industry I am interested to hear that there is a reluctance to reveal CVR details in this incident.
Could it be because the aircraft was flown into a vortex ring situation ?
I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so? I suggest that the truth is more important than silly little ego entries to this forum.

Independent? Maybe Brits have a different definition than Americans but based on the following, I (an American) would not call CPS "independent" of the police in any meaningful way.

The Crown Prosecution Service (CPS) is the principal public prosecuting agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions (DPP).
Its main responsibilities are to provide legal advice to the police and other investigative agencies during the course of criminal investigations,

I am pretty sure the majority responses of concern here are more about safety than ego. The current non-punitive system that rules the most trusted countries' aviation sectors is what works - it is proven through statistical analysis and applied knowledge of human nature to foster the growth of safety culture.

I agree there is a need to know exactly what happened, Mtoro. That is the purpose of the AAIB investigation. Criminal proceedings, may, in their investigative process discover "a cause", but are far from conducive towards preventing future occurrences.

mtoroshanga Not sure which pictures you've seen, but I can't find any that show that (maybe you are looking at the CHC EC225 controlled ditching?)

In any case, to answer your question....

https://assets.digital.cabinet-offic..._L2_G-WNSB.pdf

One non-aviation opinion I heard was that Police Scotland were seeking this information because the AAIB were taking too long. Police Scotland are not, IMO, in a position to criticise anyone for being tardy in carrying out investigations...
Crash victims may have lain injured for three days - BBC News

212MAN I have looked for the picture I mentioned with no luck, Will post it if I find it,